Law Officers
We now come to the debate on motion S1M-558, in the name of the First Minister, on the appointments of the Lord Advocate and the Solicitor General.
Before we begin the debate, I seek confirmation from Mike Rumbles, the convener of the Standards Committee, that motion S1M-517, in his name, will not be moved. Is that correct?
That is correct, Presiding Officer.
In that case, I call the First Minister to move motion S1M-558.
I am delighted to move the motion in my name.
I start by noting that we are in a rather unusual procedural situation, which has been accommodated by agreement. I am glad to say that, as I had some sharp exchanges with Alex Salmond a few minutes ago, in sharp contrast to our discussions earlier. Initially, I suggested that the motion to appoint a Lord Advocate and a Solicitor General should be debated on Wednesday. Alex Salmond took the strong view that it should be debated today—possibly he was more interested in debating those who are departing rather than those who are coming. He might have to depend upon your licence in that respect, Sir David.
In any event, I checked with the other parties and I am grateful to Annabel Goldie for her agreement that we should proceed as we are doing. I am also grateful to Mike Rumbles for seeing himself shunted off—I hope that he does not resent the phrase—for a week or so.
Perhaps the First Minister will allow me to say, in response to his comments, that I intend to allow a very wide- ranging debate, despite the narrowness of the motion. Anything relevant to the appointment of and need for new law officers will be relevant to the debate. I will not put a narrow interpretation on the motion.
I am grateful to you, Presiding Officer—[Laughter.] No—that was the basis on which the negotiations took place, and I am under no illusions that I was doing anything other than widening the area of attack at a time when people thought that it would be particularly advantageous to mount that attack. I am not feart,
as they say, of that.
This is the second time that I have asked for the agreement of Parliament to a recommendation to Her Majesty on the appointment of law officers. Unlike the series of ministerial changes at Westminster, with which many of us are familiar, this is not a reshuffle. The proposals represent elements of continuity and change. The Queen has accepted my recommendation, which was made following consultation with the Lord President of the Court of Session, that the right hon the Lord Hardie QC—known as Andrew Hardie to most of us—be appointed as a judge. I will return to that matter in a minute.
The motion that I am pleased to move today seeks the agreement of the Parliament to the appointment of Colin Boyd, who has served as Solicitor General alongside Andrew Hardie, as his successor in the senior post of Lord Advocate, and to the appointment of Neil Davidson QC as Solicitor General.
I need not take the rather measured tone that I used on the previous occasion of seeking Parliament's approval, when I talked about the antiquity and significance of those offices. I would rather concentrate on their usefulness and on the worth and merit of those who will occupy them. In the period since that first motion was put to the chamber, Andrew Hardie and Colin Boyd have worked together as a team, playing an important role in the Scottish Executive. Certainly, there has been no shortage of issues for them to advise on and I suspect that we might hear quite a bit about the European convention on human rights in that connection.
The independence of the Lord Advocate in his role as head of the prosecution system and of the investigation of deaths in Scotland is entrenched in the Scotland Act 1998. Those who are interested will find that information in section 48(5) of the act, which confirms that his decisions as head of those systems must be taken independently. While, on occasion, rather over-enthusiastic or imaginative critics might suggest otherwise, I say to members that the independence of the Lord Advocate—certainly in this Administration—is an undoubted fact. That independence is respected by ministers and stringently maintained by the law officers themselves.
In the period since May, we have seen more of our law officers than has been the case in the recent past in Westminster, which indicates the complexity of administration in Scotland. It has been an experience that has been of great help to me and to my colleagues. We all stand to gain from the contribution of the law officers to our debates, which is subject only to the provision in section 27(3) of the Scotland Act 1998 that they may
"decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case" if that
"(a) might prejudice criminal proceedings in that case, or (b) would otherwise be contrary to the public interest." Having made those brief points, I will refer to some of the points that have been made—noisily and energetically—around the edges of this event. I am afraid that I have not been able to hear all the broadcasting that has been going on, but a number of clear charges have been levelled that, I believe, cannot be founded on fact and are deeply mistaken.
The first comes from Annabel Goldie, whom I heard telling the world that we were staggering from crisis to crisis. I do not think that the word shambles quite came to her lips, but that was the general picture that she was painting. I am interested in this because, as far as I know, what has happened here is that a much-respected Lord Advocate with an impeccable legal reputation and a long period of service—four years as treasurer of the Faculty of Advocates, three years as dean of the Faculty of Advocates, and almost three years as Lord Advocate—has been appointed to the bench. In some strange way, that is being represented as an extraordinary event, without precedent and deeply shocking to the professional ethical standards of Annabel Goldie, solicitor of this parish.
I do not want to put this to Miss Goldie offensively—and I might be wrong—but when we discovered that Lord Mackay of Clashfern was abandoning the office of Lord Advocate to become a judge, I do not think that she protested that that was dereliction of duty, that it was someone bailing out, and that it should be heavily criticised.
I acknowledge the point that the First Minister is making, but does he not accept that there cannot be any possible comparison between the circumstances surrounding the resignation of Lord Mackay of Clashfern and those surrounding the very summary departure of Lord Hardie?
I am not sorry in any way, after the very long history that I have outlined. I will not labour the example of Lord Mackay of Clashfern. I could have cited those of Lord Cameron of Lochbroom or Lord Rodger of Earlsferry. All those people were Lord Advocates and all of them were put on the bench, in non-election years and with no apparent justification except the good sense of wanting to put a very good person on the bench. I did not hear Annabel Goldie or anyone else criticising that. Certainly, I
did not say how shocking and disgraceful it was, and how offensive to good order and procedure in government. There are other examples. Lord Murray, a good friend of mine and former MP for Leith, was put on the bench in rather similar circumstances as Lord Advocate. We can agree that there is nothing unusual about the circumstances of this case or the machinery that is being used.
As I understand it, we are being told that there is a particular difficulty, and that we cannot do without Andrew Hardie—that he is irreplaceable and that there is no other talent at the Scottish bar that can competently fill the gap that he has left. It has been said that there are particular difficulties arising out of European convention on human rights cases. Certainly, the ECHR has produced some unusual challenges for the law officers and the Administration. The particular cases that are seen as having some significance are that relating to speed cameras and the challenge to temporary judges, stipendiary magistrates and temporary sheriffs. However, as the Minister for Justice said, of 337 devolution cases that relate to the ECHR, eight have been lost, of which two are currently under appeal. I do not know how a crisis is defined, but I think that that defines a work load. The outcome of the cases to which I have referred hardly amounts to a crisis.
Will the First Minister give way?
My time is limited, but I will take an intervention from Roseanna Cunningham.
The First Minister is at risk of having headlines that read, "Crisis? What crisis?" Does he not accept that the Lord Advocate has faced unprecedented criticism for the past nine months, and that to pretend otherwise is disingenuous in the extreme?
That is an extraordinarily dangerous argument. If we have trial by newspaper headline, we will get some very odd results. I observe that yesterday's edition of The Times contained the headline, "Rivals queue up behind SNP leader", suggesting that Mr Alex Salmond was about to disappear into infinity. I read the papers occasionally with wild hope, but I do not take the headline that I have just cited as a prediction of what will happen in the next few minutes.
Briefly, I want to deal with the question of Lockerbie. Of course we take the Lockerbie case seriously. There is a team that is led by two senior advocates, Alastair Campbell—not the one of whom members are thinking or any relation to him—and Alan Turnbull. Colin Boyd has chaired a core committee, which has met week after week over a long period to examine statements and procedures and plan the tactics. Colin Boyd has a distinguished history at the bar and is remarkably well placed to continue that work. He has been in the front line of the preliminary debates both at Camp Zeist, when the court sat there, and in Dumfries sheriff court. It is untrue to say that we are removing either the engine of the prosecution or overall legal oversight of the case.
I hope that people will not traduce professional reputations or suggest that the trial cannot be properly or diligently conducted because someone as able, well equipped and experienced as Colin Boyd is taking over. That argument should not be pursued.
The First Minister gives the impression that Lord Hardie was almost superfluous to the Lockerbie trial. Is it not the case that Lord Hardie was to head up the prosecution in that trial and that he gave commitments to the Lockerbie relatives? Does the First Minister not understand that the concerns of the Lockerbie relatives are very real? Given that he has gone of his own volition, what excuse can Lord Hardie have for letting them down?
I assure Mr Salmond that the senior people, such as Colin Boyd, who are coming in to conduct the trial and who have been involved throughout will discuss the situation shortly with the Lockerbie relatives. It is important that the Lord Advocate be involved, and the Lord Advocate will be involved—I refer to the office rather than the man. Men do not live for ever. Sometimes they feel that, after 10 years of hard labour, they want a change. It may be that Mr Salmond will think that at some point in the not- too-distant future. In case he thinks that I am getting at him, I will say that I, too, sometimes think that on occasion, particularly when he is shouting at me.
I assure Mr Salmond that the trial will be properly and effectively conducted. Therefore, as I understand it, the main charges relate to the ECHR. Neil Davidson has had outstanding experience of ECHR cases and has been prominent in that area of the law. We are offering good and experienced representatives of the best of the Scottish legal tradition, whom I can safely commend to the chamber. I hope that the chamber will agree that I recommend them to the Queen for the offices of Lord Advocate and Solicitor General.
The role of Solicitor General is demanding and is becoming more demanding. I accept that there is often a need for advice about European competences and competences under devolution, and it is certainly true that there is a need for ECHR advice. That is partly why I value what Colin Boyd has been able to provide in recent times. I know Neil Davidson and am satisfied that
he will be able to fulfil his duties effectively and with distinction, and that he will be a good colleague to all of us.
I finish by saying that Andrew Hardie has served the United Kingdom Government and this Executive well. I say with confidence, which I hope will not be undermined by anything that is said in the debate, that I do not think that anyone could grudge him his promotion to the bench, which has been made on my recommendation to the Queen after consultation with the Lord President. He has been a remarkably effective and good colleague. I wish him every success in the future.
I ask for members' support in recommending Colin Boyd and Neil Davidson as the new law team to take us through the years ahead.
I move,
That the Parliament agrees that it be recommended to Her Majesty that Mr Colin Boyd QC be appointed as the Lord Advocate and that Mr Neil Davidson QC be appointed as Solicitor General for Scotland.
No doubt in due course the current and future Lord Advocates will, unless there is a change to the judicial appointments system, find their own way on to the bench.
The motion is about recommendations for appointments; the text is uncontroversial. What is controversial is the manner in which the vacancies have come about and the timing. The First Minister's contribution made for interesting listening—interesting more for what he did not say than for what he did say. The stark truth is that the development is extraordinary and quite unexpected. A member of the Cabinet has gone, in circumstances that can be described only as self-promotion, at a time when there is an unprecedented challenge to our whole system of criminal and civil justice. Worse than that, the individual in question has been one of the key people responsible for preparing for that challenge, a task that has led to him being severely criticised, in my view, rightly.
The joint function that the Lord Advocate embodies, political by virtue of his membership of the Executive and independent by virtue of his legal role, has resulted in a great deal of adverse comment. It is nonsense for Labour back benchers to suggest that no one must "play politics" with this issue. The Lord Advocate is a member of the Cabinet—how much more political can anyone get? If people are not happy about that, I suggest that they remove his political function rather than complain when perfectly valid political points are made.
A number of serious issues are raised by the manner of the Lord Advocate's going and the consequential appointments, not least of which is the international consternation already caused. I listened with great interest to some of the relatives of Lockerbie victims interviewed this morning on the radio. For the record, I repeat the statement of one of those relatives, which the First Minister dismissed as an exaggeration:
"When we met with Lord Hardie last summer, he told us that he was going to oversee the trial and he would be there, coming in and out, he would oversee things.
I am appalled and amazed that at a moment like this when you have a major trial, a trial such as you've never had in your history that the Lord Advocate just decides to leave."
It is extraordinary that an American woman none of us has met and who probably knows very little about the Scottish legal system appears to understand more about the relevance of the Lockerbie trial than does the First Minister.
There were expressions of shock from those relatives because apparently the Lord Advocate had personally reassured them that he would be overseeing the Lockerbie trial right through to its end. So much for the personal assurances of the outgoing Lord Advocate. On the eve of the trial starting, a great many people—not least of them the bereaved families—will feel a strong sense of let-down that Lord Hardie has chosen to depart the field.
Scotland should feel let down. Arguably the trial is one of the most important in the history of Scottish criminal justice. The eyes of the world will be on us. On the eve of the trial starting, the man who has been responsible for every one of the key decisions in the prosecution since 1997 has chosen to up sticks. What kind of message does that send out? It is an abdication of responsibility not worthy of Scotland's most senior law officer. The very least that Lord Hardie could have done, from a professional and personal perspective, was to see the trial through to a close. By not doing so, he leaves the door open to a great deal of speculation on whether he has confidence in the outcome. [Interruption.] There is no point the First Minister screwing up his face—he knows as well as I do that speculation about the strength of the evidence has been running now for over two years. This decision hardly bolsters confidence. [Interruption.]
Will the member give way?
The Lockerbie trial is not the only controversial aspect of what has occurred in the past 24 hours. For the Lord Advocate as senior law officer, it was one of his responsibilities to ensure that Scotland was well prepared for the incorporation of the ECHR into
Scots law. Lord Hardie has been Lord Advocate since 1997, well before the change was proposed and effected. We are entitled to assume that he had a hand in the decision to incorporate the ECHR—so it is even more remarkable that we are in this situation. Let me be clear. The Scottish National party welcomes that incorporation. What we are unhappy about is the fact that the Executive appears to have been totally unprepared for the reality of what it meant.
We are entitled to ask whether the Lord Advocate's departure at this crucial stage means that there are more crises ahead. Perhaps he has felt like someone trapped on a train line with a runaway train heading at full speed towards him. It is handy, is it not, to be in a position to realise that, first of all, one's job is going belly up and that, secondly, one can get oneself promoted out of it.
The new Lord Advocate cannot escape the blame because, as Solicitor General, he also dealt with day-to-day preparations for the incorporation of the ECHR. People can draw their own conclusions as to whether that performance merited promotion.
Week after week, we have heard a saga of stories about temporary sheriffs, children's panels and the impact on road traffic law—and goodness knows what else is in the offing—all of which was, apparently, unforeseen. The outgoing Lord Advocate was where the buck stopped, and it is difficult not to come to the conclusion that the going got rough so he got going. The verdict across a wide spectrum of opinion is that he has singularly failed in his duty to the Scottish justice system—and for that he is rewarded, virtually by his own hand.
That brings me to the next question that is raised by these announcements. Lord Hardie's departure shows that our current way of making judicial appointments is a complete and utter nonsense. Effectively, the going got rough for him so he got going, onwards and upwards in spite of the mess that was left behind. Surely reform of the process of judicial appointments through the creation of a judicial appointments board is now urgent.
I know that the First Minister has pointed out that there might be a consultation on judicial appointments. The problem is that it keeps receding into the distance. The Executive does not appear to understand or accept the fact that the old system of patronage has long since ceased to appear reasonable in the eyes of the general public or indeed in the eyes of the legal profession.
It is the year 2000. To use a phrase popular with new Labour, this is a new Scotland, and we are certainly sitting in a new Parliament. Surely we should be finding new ways of doing things. We should remove once and for all the power of patronage from the Lord Advocate, who is, after all, a senior member of the Government. It is that very patronage that has already caused some of the problems with the ECHR, and we certainly cannot allow it to continue any longer. To paraphrase The Scotsman this morning, how independent will our judicial system seem when the chief prosecutor appoints the chief prosecutor to the bench? It is a nonsense. Neither should we tolerate the lack of transparency and accountability inherent in a system that has remained unchanged for centuries and which is no longer appropriate.
We are grateful to Mike Rumbles and the Standards Committee for making time for the debate this afternoon. It seems extraordinary that the Executive did not plan for a timeous statement in the chamber and left the issue to the convener of the Standards Committee. That was unworthy of the Executive, and the entire exercise leaves a very bad taste. I hope that we will never see a repetition.
Although Sir David indicated the widest latitude in the debate, I feel that it is beginning to skate precariously close to the edges. I call Annabel Goldie.
Presiding Officer, I hope that you will accept that thought must be given to the circumstances that gave rise to this motion—last night's summary announcement that Lord Hardie had made himself a judge. Even allowing for the fact that such a mode of judicial appointment will almost certainly be consigned to the history books, the question is "Was I surprised?" In fact, I was astonished. Contrary to the First Minister's assessment, I think that the Executive is deaved by legal problems, many of them as a consequence of the European convention on human rights.
There is a veritable catalogue of calamity. The First Minister may not consider it to be such but, as a practising solicitor, I certainly do. We have 126 temporary sheriffs who have lost their jobs and a huge accumulation of unaddressed litigation. The enforcement of our road traffic law is being called into question, the status of our children's panels is in doubt and our ability to take tough measures to tackle drug dealing is in question. The universal application of deferred tuition fees for all Scottish students throughout the United Kingdom has been proscribed.
This is sheer curiosity on my
part, but if Lord Hardie has presided over such a catalogue of disasters and abdications of responsibility, why does Miss Goldie think that we ought to keep him?
Because in my book, if one is present when the going gets tough, one should stay put to sort it out and not run away.
An enormous question mark hangs over the impartiality of the office of Lord Advocate in the matter of judicial appointments, given that he is a member of the Government. It is my submission to the First Minister that, far from disappearing into the blue yonder, the Lord Advocate should be on hand to advise on the problems and to steer us through the solutions. This situation is making the Parliament a laughing stock.
The other issue arising out of this episode relates to the implications for the Lockerbie trial of Lord Hardie's departure. Roseanna Cunningham has already alluded to that. The trial will be the most significant ever to take place under Scots law. What does this departure say about the dependability and substance of our legal system, which formerly was the envy of the world? The departure makes a mockery of Scots law and our legal system.
What about the position of law officers as members of the Government? In a devolved structure—a fact that is of particular significance— does not such involvement create an irreconcilable conflict of interest? How can professional advisers act with detachment when inevitably they are politically compromised? It is not a matter of culpability; it is de facto the situation.
Unlike the First Minister, I am tight for time.
What about the manner of Lord Hardie's going at this time of crisis, a phrase that I repeat without apology? The going gets tough, and clear, firm guidance is needed at this testing time from the Lord Advocate. He is the principal legal adviser to the Executive, but what does he do? He makes himself a judge. Some may say that he does not do so directly, but I disagree. We know that a consultation paper concerning judicial appointments will probably be produced in March. The existing practice of appointment of judges by the Lord Advocate will almost certainly cease. I must ask the First Minster: is not what has happened, at best, unseemly?
This resignation has made a laughing stock of the Parliament and a mockery of the Scottish legal system, but it has detonated public confidence in both. I submit that these are the hallmarks of a crisis-ridden, rudderless Executive, which has no guts, because there is no stomach and no control.
Looking at the motion before us and at the intended appointees, of course the Conservative group wishes Mr Boyd and Mr Davidson all good fortune in their positions. They are venerable and respected jurists. However, I must say that this motion is not remarkable for its content; what is remarkable is that, at this time in our affairs, we should be required to debate such a motion at all.
I would like to state the Liberal Democrat group's appreciation to Mike Rumbles and the Standards Committee for allowing this debate to proceed this afternoon.
It is appropriate that we should have this debate. The circumstances of the Lord Advocate going are exceptional. If Lord Hardie wants to go, it is appropriate that he goes now, before the opening of the Lockerbie trial in May.
The Liberal Democrats accept that the current Solicitor General has been intimately involved in the preparation of the trial. The shock of the Lockerbie relatives at Lord Hardie's departure is perhaps partly a result of the fact that he appeared to strike up a considerable rapport with them, but we are clear that the prospective Lord Advocate will soon dispel any doubts that the relatives may have about the proper prosecution of the trial, which is, as has been said, an important trial for the Scottish legal system. It is somewhat irresponsible of some Opposition members to try to fan the flames of doubt, because, as has been said, the prospective incumbents of the posts are distinguished jurists, who will serve the Scottish legal system well.
No one is questioning the abilities of the two gentlemen. We are merely questioning the departure of the former incumbent.
I hear what the member says.
The Liberal Democrats wish to make clear our belief that this should be the last judicial appointment of this nature. The partnership agreement included a clear commitment to consult on the arrangements for judicial appointments in Scotland; we look forward to that consultation taking place in the spring, as was stated in a written answer. We hope that "in the spring" means publication before the Easter recess. The Scottish public clearly want a more open and inclusive appointments process and a broader base from which candidates for the supreme courts and the shrieval bench are drawn. Any such process should not, at any stage, dilute the integrity and capabilities of judges or sheriffs and that will have to be taken into account in the consultation document.
Mr Robson's remarks about integrity are appropriate and indeed apply to all the law officers. Given the First Minister's remark that Lord Hardie was a close friend, does Mr Robson believe that people who are the First Minister's close friends might be inappropriate for such appointments, as circumstances may arise where accusations of impropriety and cronyism can be made? Those issues ought to be borne in mind.
Friendships should not rule somebody out of an appointment. Appointments should be made on the ability of the candidate. We want the process to be more open and to allow candidates of quality to come through. The present system is not acceptable to the public in Scotland and should be replaced.
On the role of the Lord Advocate within the Government, I understand that the Scotland Act 1998 makes it clear that the Lord Advocate is a member of the Executive. However, the act is silent on the fact that the Lord Advocate is a member of the Cabinet. It is essential that a law officer is present during the Cabinet's discussions. However, whether that law officer is a full voting member of the Cabinet is a matter that the Parliament should review in due course, as the Lord Advocate's office should be above political reproach. We should have a parliamentary debate on that matter.
We wish the prospective incumbents of the two posts, Colin Boyd and Neil Davidson, well, especially Colin Boyd, who will have to bear the responsibility for the Lockerbie trial. I hope that the Parliament will accept the motion so that we can give him full authority to proceed in his onerous duties.
I welcome the transfer of Lord Hardie and his appointment as a judge.
If Roseanna Cunningham had allowed me to intervene in her speech, one of the comments that I would have made was that—given what she said about the old system of appointing judges and the need to consider a new one—perhaps the Opposition should welcome this change as a watershed, rather than criticise it.
I recognise that the Opposition welcomes the introduction of the European convention on human rights into our law. However, it does not acknowledge what a bold step that is or the major constitutional change that we are embarking on. No matter what Government was in power, the same practical difficulties would exist. Rather than criticise for ever and a day what the Executive has done by introducing the European convention on human rights into our law, the Opposition should congratulate the Government for being bold. The incorporation of the convention is a good step and it will be good for Scots law and justice.
I appreciate what has been said about the families' concern over continuity. However, Colin Boyd—who is the Solicitor General for Scotland and is to be the new Lord Advocate—has been involved in the Lockerbie trial from the beginning, so I believe that there is continuity. I congratulate him on his appointment.
If I express any disappointment today, it is because the Justice and Home Affairs Committee was beginning to make some progress with Lord Hardie on the need for a more transparent prosecution system and for more transparency in relation to victim support. I make a plea to the new Lord Advocate: those are important issues to the Justice and Home Affairs Committee and to justice as a whole and I hope that, with him, we can continue to make progress.
The issues in today's debate are not new to me; I have been lodging questions about the number of judges for ever and a day and I spoke in our debate on the Maximum Number of Judges (Scotland) Order 1999. I take the opportunity today to reiterate some of my concerns.
Jim Wallace is right to review the system of the appointment of judges. It is not good enough that we—and the legal profession—still do not fully understand how the appointments are made. Lord Hardie himself said that we should have a judiciary bench that better reflects what Scotland looks like. We now have 30 judges, two of whom are women, which is double the number of women judges than there were. That should be welcomed, but it is not enough. The Conservatives do not agree with me on that point, but I say that it is a good step forward. Twelve of our judges went to Oxford or Cambridge, and the age range—between 42 and 82—is much too narrow. We should take the opportunity to change that.
On the contrary, the member would find that the Conservatives have a lot of sympathy with what she is saying. However, does she agree that part of the cosy and perhaps too close relationship that exists in relation to appointments is due to the current structure of appointments? That is the very aspect that we were seeking to challenge.
In the Faculty of Advocates, there are men and women who should be given the opportunity to represent the wider interests of Scotland. We now have an opportunity to ensure that that happens.
Although I do not challenge the integrity of any of our judges, it would not be out of turn to say that there is a perception in the wider population that
they are sometimes a wee bit out of touch. The "white smoke" procedure does not give any credibility to our criminal justice system. We want a system that ensures that more women, more ethnic minorities and more people from a variety of class backgrounds are represented on our benches. I welcome the fact that Jim Wallace will be addressing that issue, although I would like him to do so in stronger terms.
I suspect that the Opposition's criticism would be the same regardless of whether we were talking about Lord Hardie; I suspect that Colin Boyd will have to face the same kind of criticism that we have heard this afternoon. This should not be about personalities; it presents us with a good opportunity, which we should all welcome. I doubt that anyone in the chamber is fully happy with the system of the appointment of judges. Let this be a watershed. Let us welcome the new appointments. Let us look forward to a better justice system.
Well, well, well—the Lord Advocate has resigned. Not before time, in my opinion, but what a sense of timing. Various issues need to be addressed: why he was right to go; why he should have gone long before; why, in the 21st century, the manner of his elevation following his resignation is allowed to continue.
Let us deal with the first matter: why he was right to go. I believe that he has been presiding over chaos and shambles. In 20 years as a practising solicitor, I have never known the courts or the profession to be in such disarray. I have never known so many aspects of the law to suffer such mishandling, if not downright incompetence. As Roseanna Cunningham said, the buck stops with the Lord Advocate.
In the Procurator Fiscal Service, morale has gone through the floor. There has been the shambles over temporary sheriffs—an accident waiting to happen. Everybody in the profession knew about it; the sheriff clerk's office had an emergency strategy. Did the Lord Advocate have an emergency strategy? No, he did not. What happened did not sneak up on him; he just failed to prepare for it.
In the judiciary, we have a shortage of judges, due partly to the fact that the Lockerbie trial requires various judges to go to the Netherlands. How does Lord Hardie deal with that crisis? He appoints himself to the bench. That smacks of a sinecure.
Why is Lord Hardie's timing wrong and why should he have gone before now? He should have gone after the Ruddle affair. That did not sneak up on him. I asked various questions to find out why
Ruddle's agents attempted to negotiate a conditional release, which would have offered the public some protection from Mr Ruddle and might have offered Mr Ruddle some protection from himself. I was told that the Executive could not comment on the actions of a previous Administration. I was being told that the Scottish Executive would not comment on the Scottish Office, even though, since May, we have had the same Lord Advocate who was Lord Advocate for the Scottish Office. Perhaps the Executive refused to answer because the conditional discharges were on offer and were not taken and because the public paid the price until the loophole was closed.
The Lord Advocate was the constant factor. He has left only when there is a shambles about shrieval appointments, when disaster beckons on the European convention on human rights and a stench of on-going cronyism permeates the profession. As Roseanna Cunningham said, we now face the biggest prosecution in Scotland's history—probably the biggest prosecution in the world since the Nuremberg trials—yet the man who was supposed to preside over the trial, to ensure safe hands and continuity, bailed out a few months before it was due to start.
What happened next? Lord Hardie's resignation was followed by his immediate elevation. Most folk who resign and leave under a cloud go out with a P45 and a bleak and uncertain future. This man has walked out the door, across the road and up the stairs to a salary in excess of £100,000 per annum and a sinecure until he reaches the age of 70, unless he chooses to retire on the grounds of ill health. He appoints himself just weeks after the publication of newspaper articles accusing him of cronyism in his appointments to the shrieval bench. New Labour cronyism extends to the judicial bench and the shrieval bench.
Lord Hardie should have gone long ago. His delay has continued to cause chaos and turmoil and I shed no tears for his departure. However, I am appalled that, in the 21st century, a Lord Advocate can elevate himself, using the power of patronage that might have been appropriate when Walter Scott was at the bar, but that is certainly not appropriate in Scotland today. This is supposed to be an open and transparent Scotland and all those other things that Labour has harped on about.
It is slightly ironic that we should have been debating a code of conduct. Without doubt, as far as the Lord Advocate is concerned, there has been questionable behaviour or at least a questionable decision. There has been a lot of hot air; Labour members have expressed much indignation and a
lot of hurt. They seem to believe that they should not be questioned on such issues. However, the public know that questions should be asked—they want to hear the debate. Despite the ineffective, casual words of the First Minister, most of us see this as a crisis. The issue raises questions in the public mind about the quality of the justice system in Scotland.
Mr Wallace said that he had been working towards the incorporation of the European convention on human rights into Scottish law for his whole life. He should be ashamed of himself, because incorporation has created a shambles. Several times today we have been told about the difficulties in our sheriff courts, which were not foreseen by the First Minister or the Lord Advocate—or if they did foresee those difficulties, they were badly caught out. There have been problems in appointments to the magistrates bench in the district courts. There is a question about the appointment of judges. Once again, I wonder how the European Court of Human Rights will view the appointment of another Lord Advocate and Solicitor General for Scotland. It is probably quite legitimate, but a challenge may arise.
Will the member give way?
Will the member give way?
I will give way in a moment.
There are challenges to children's panels. For years, in the House of Commons and elsewhere, I have heard nothing but praise for the children's panel system in Scotland. What do we get now from the European courts? We hear that children's panels are probably not up to scratch. There is a question over their legitimacy, just as there is a question over the legitimacy of the way in which the police take evidence from people who have committed serious motor offences. There is something fundamentally wrong, and the Lord Advocate is at the root of it. He was no doubt an adviser to Mr Blair and to the First Minister, as Secretary of State for Scotland, when they decided to incorporate the European convention on human rights. There is a real failure and for someone to be promoted out of that failure is an absolute disgrace.
I suppose I am indulging my curiosity, but has Mr Gallie always objected as a matter of principle to Lord Advocates going on to the bench? If so, would he like to explain the events of the past 18 years?
No, I have no objection to that and I will not have an objection to it in the future. I would have no objection at present if this Lord Advocate measured up. Whether or not he measures up, he has shown a failure of confidence in not seeing through the job that he had undertaken. He has shown a failure of confidence over the implementation of the European convention on human rights and over the European Court of Human Rights' involvement in Scottish law. He has shown a lack of confidence in respect of Lockerbie and the job that he was committed to.
I go along with what Roseanna Cunningham said about that confidence. Irrespective of the evidence that he has brought together, his decision suggests that there is a weakness in it. Who would walk away from such a trial? As Kenny MacAskill said, this is the trial of the century. This is a new century, but it is a trial of the past century as well in Scottish law.
Mr Gallie, I must interrupt you.
The world will have its eyes on the trial and it is tragic that the Lord Advocate has bailed out.
Mr Gallie, I was trying to interrupt you to indicate that, in speculating on the outcome of the Lockerbie trial, you are on very dangerous ground.
I am sorry—I did not hear that.
I take it that you have finished your speech.
I have had my four minutes.
I refer the Minister for Justice to the Official Report of the Justice and Home Affairs Committee meeting on 31 August, at which Lord Hardie said:
"Colin Boyd and I are accountable to the Scottish Parliament for the manner in which we discharge our responsibilities; we hope that, where possible, we will be in a position to be as open as those responsibilities allow."
So the first count is openness. Lord Hardie continued:
"Colin Boyd and I work closely as a team, with Colin heading a number of specific projects. For example, he has oversight of the preparations for the Lockerbie trial and the working group on the European convention on human rights."
Although these quotes have been selected from different parts of his speech, that does not distort what was said. Later, he stated:
"I am pleased to report that my department was the first United Kingdom Government department to train all its lawyers and investigators on convention rights."—[Official Report, Justice and Home Affairs Committee, 31 August 1999; c 41-42.]
I have to say that on that count and on the count of openness, he has not been very successful. I regret that I have to include Mr Boyd in those
comments on the quality of legal advice.
On September 3 1999, like my colleague Kenny MacAskill, I asked the Executive questions on the Ruddle affair. I asked five in all. It took until 17 January to get a response to this question:
"To ask the Scottish Executive what was the nature of the legal advice, given on or around 19 March 1998, which led to the transfer of Noel Ruddle to Broadmoor not proceeding and who gave that advice."
Five and a half months later, the response was:
"The Scottish Executive cannot provide information about the actions of the previous administration."—[Official Report, Written Answers, 17 January 2000; Vol 4, p 109.]
Not being one to lie down, on 26 January I wrote to Mr Wallace. I asked:
"Firstly, given the content of the answers or lack of same, can you advise why it took 5 months to reply?
Secondly, what is the basis for the refusal given that the same Lord Advocate is in place as during the early days of the Ruddle affair? If a question arises as to the quality of legal advice then, and the personnel remains the same, there is a continuity of interest and responsibility."
I regret to say that I think that that taints Mr Boyd as well because, according to Lord Hardie, he was part of the legal team that looked into the European convention on human rights and trained the lawyers.
Answers are still pending to other questions on legal advice. One of those questions is about the operation of Community law and the European convention on human rights in the purported prohibition of non-payment of tuition fees for Scottish students in English universities, a matter that I raised during the recent Cubie debate. I have asked those questions and I have asked to see the legal advice that, if we are being asked to accept it, this Parliament should surely be entitled to see. I get no response. What is the problem? Why not produce that conclusive, persuasive legal advice and hit me over the head with it? That will stop me asking questions.
We move on seamlessly from the Noel Ruddle case to temporary sheriffs to speed cameras to children's hearings to the Cubie committee to a resignation out of the blue. Were any of the ECHR challenges foreseen? If not, tell us; if they were, tell us. Furthermore, with what legal advice was Colin Boyd closely associated?
Lord Hardie is not just leaving behind unanswered questions for me and an untidy desk in his hurry to make a stage exit right to the judicial benches; his still-swinging chair will now accommodate a new Lord Advocate who had
"oversight of the preparations for . . . the working group on the European convention on human rights".
To lose one Lord Advocate could be seen as unfortunate; to lose two would be carelessness.
The motion is about whether we should appoint Colin Boyd as Lord Advocate and Neil Davidson as Solicitor General. Nothing that I have heard so far indicates that they are unfit for those positions.
Three main objections have been raised: first, that it was inappropriate for Lord Hardie to recommend himself as a judge; secondly, the outstanding issue of how the European convention on human rights will affect Scots law; thirdly, the possible effect on the forthcoming trial in the Netherlands concerning the Pan Am bombing over Lockerbie.
On the first objection, there is very recent precedent for someone moving from the position of Lord Advocate to the supreme courts. Lord Hardie QC is one of Scotland's leading lawyers and a formidable legal talent; he is eminently fit to take up his new position.
In his speech, the First Minister indicated that Colin Boyd and Neil Davidson were well qualified to reflect upon and pursue the challenges that lay ahead with regard to ECHR. Although several high-profile cases have appeared to show that contemporary legal practice is incompatible with ECHR, it should be borne in mind that almost every challenge in the Scottish courts has been successfully resisted—173 out of 176 such cases, at the last count.
The First Minister also said that Colin Boyd had been integrally involved in the preparation for the Lockerbie trail. I agree with members who have stated that there is continuity in the preparation of the case, and I hope that the victims' families will have faith in the process on which we are about to embark.
As Pauline McNeill said, the events of yesterday and today should be seen as some sort of watershed. In last year's debate on the Maximum Number of Judges (Scotland) Order 1999, a few members spoke eloquently about the need to appoint judges from a wider cross-section of Scottish society to reflect more than the narrow band of people who have filled those positions.
Comments were made about possible threats to the children's hearings system in Scotland. That system is now 30 years old and it is right that we should examine its workings. I have been involved with the system for some years and, although it has a lot of merit, it has been perceived as being contrary to the United Nations Convention on the Rights of the Child. As a result, it is now appropriate to examine the system; some of the questions raised at First Minister's question time reflect that feeling.
Although it is important to debate this issue
today, we should not get caught up unnecessarily in the events of the past 24 hours. We should bear in mind the fact that the people who have been recommended for the positions of Lord Advocate and Solicitor General are clearly fit to fill those posts, and we should agree to their appointments today.
The way in which this vacancy has come about raises a number of questions that have already been asked by several members. It was interesting that a few members tried to depoliticise the whole issue. However, Roseanna Cunningham illustrated the fact that not only was Lord Hardie a member of the Scottish Executive, but he was more than happy to take the party line when he was in the chamber.
Members should cast their minds back to the emergency legislation debate on the Noel Ruddle affair during which Lord Hardie was more than happy to launch a political attack against Kenny MacAskill. There is a conflict in the present system in that the Lord Advocate is head of the Crown Office and he also serves in the Scottish Cabinet. That conflict of interests has resulted in the problems about temporary sheriffs in Scotland. That is why there is an urgent need to press ahead with the introduction of an independent judicial body that will appoint sheriffs and judges.
Let us be clear: the responsibility for the problems that we have had with incorporation of ECHR into Scottish law lies with Lord Hardie. The First Minister gave the impression in his comments that Lord Hardie was not solely responsible and that other individuals were involved in that decision to incorporate ECHR. I would like to refer to a briefing document from the Scottish Parliament information centre. With regard to the Lord Advocate, the briefing states:
"In particular, he is responsible for advising the Scottish Executive on constitutional and legal matters including the operations of the Scotland Act" and
"the European Convention on Human Rights."
He is ultimately responsible for the decision on ECHR. The First Minister's friend Andrew Hardie carries the can for the mistakes that have been made.
I wish the new Lord Advocate more success than his predecessor had in dealing with the European convention on human rights, but I fear that there are more pitfalls round the corner. I hope that he will be able to identify them more quickly than his former colleague did.
I had a discussion with several sheriffs yesterday and they consider that there are probably more problems along the road. They highlighted the fact that further problems will result from the enforcement of the Human Rights Act 1998, which will be in force from October. They also wondered whether sheriffs are being given appropriate training that takes into consideration the implications of that act.
A number of contributors to today's debate have a certain standing in the legal world through having practised law at solicitor level or at the level of the High Court. I have never worked in the legal system, but patronage surrounds the system and I am sure that many Scottish people will ask why we have such an arcane system in the new millennium.
In the spirit of freedom of information, which his deputy is so keen on, I would like the First Minister to give me a straight answer to a straight question. Why did Lord Hardie resign?
I will first address the motion to recommend the approval by the Parliament of the appointment of the new Lord Advocate and Solicitor General. That is the central point of the debate and that is what we must deal with today. We already know Colin Boyd through his activities as Solicitor General, and Neil Davidson is eminent in the legal profession. They are both worthy of appointment to the posts—that should have been the central point of the debate.
The tone of the debate has been singularly distasteful. It has been shot through with tirades and personal abuse and comments about individuals, which are unseemly in the extreme. There are one or two important issues that are central to the circumstances with which we are dealing today. The main issue is the way in which Lord Hardie's appointment to the bench has taken place. It is regrettable that people such as Phil Gallie who have been involved with Conservative Governments that did not protest about the practices involved should tell us how indignant and upset they are about the matter. However, the fact remains that in a modern, 21st century democracy a system of judicial appointments under which the person to be appointed has a significant hand in the appointment is quite unacceptable.
When, in addition, we have a situation where the dividing line between the prosecutorial and judicial systems in Scotland is blurred, we have a serious problem, which should have been dealt with long ago. It is notable that the Law Society of Scotland, in its representations to the criminal justice review working party way back in 1989, recommended the establishment of a judicial appointments board, made up of representatives of the judiciary,
the legal profession and the general public.
Some of what has taken place today provides a very strong argument against the kind of open hearings that are seen in America. We must be careful to ensure that once the consultation paper has been published, we replace the present system with something reasonably adequate. However, it is not unreasonable for the chamber to agree that the system of appointment of our judiciary—the centrepiece of the legal system— must be open, above board, accountable and, above all, independent.
The system does not meet those strictures at the moment. The Lord Advocate is both a legal and a political figure. My second central point relates to that reality. If I have one word of advice for the new Lord Advocate it is that he should try to stay out of political debates in the chamber and rest with his legal skills. There are undoubted difficulties where the legal and political systems overlap. It is appropriate that the Cabinet should have the input, in some shape or other, of the top brains of the legal system to advise and inform not only on particular matters, but on the gamut of political decisions. It is not appropriate, however, that a person who will carry the can for controversial decisions and prosecutions in the general legal system should be embroiled in day- to-day party political matters.
The final issue to take on board is the ECHR. We have reached something of a watershed. A number of points have been made. It is probably a little unfair to blame either the Executive or the individuals involved for those matters. The incorporation of ECHR into Scots law is an important step. The chamber must make it clear that it welcomes, endorses and fully supports the ECHR's incorporation. The tone of some of the comments that we have heard today suggests that that is not the case.
We must go forward from today with our new set of law officers. Let us give them our wholehearted approval and support and take a few moments in the days and weeks to come to consider the extent to which the implications of the ECHR have been addressed. We should perhaps have a full report to Parliament on that.
With that, I welcome the appointment of the new officers.
The First Minister will, of course, be aware that Mr and Mrs Dan Cohen, whose daughter Theodora died in the Lockerbie atrocity along with more than 250 others, stated:
"When we and other American relatives met Lord Hardie . . . he assured us personally that he was pressing ahead with the case and that he would oversee the prosecution."
Surely the Executive must be aware that the senior prosecutor's departure, just before the most important trial in Scotland's legal history, which involves great complexities, leaves the clear impression of dereliction of duty, especially when his departure is associated with self-promotional interests.
What Lord Hardie is doing is, in our view, entirely wrong. There is a serious danger that his action will damage the integrity of our system of criminal justice. As it is, Mr and Mrs Cohen said:
"In America the idea of the attorney-general quitting before the biggest trial the country has ever seen would be unthinkable".
It should be unthinkable in Scotland. The Lord Advocate gave the families of the victims his word. He should have honoured his word and carried out his responsibilities.
He has left in his wake a catalogue of unsolved problems. As we have heard, problems have arisen from the incorporation of the European convention on human rights into domestic law, which caused 126 temporary sheriffs to lose their jobs. The court system has been thrown into disarray and the situation is still unresolved.
That happened because there was a conflict of interest between the chief prosecutor prosecuting and the Lord Advocate also being able to hire and fire judges. There is also a clear conflict of interest between the chief prosecutor sitting around the cabinet table with a group of politicians from whom he should be independent and seen to be independent. Now it is necessary for the Administration to address the question of whether it is appropriate for the Lord Advocate to be a member of the Cabinet, as he is not seen to be wholly independent.
All that pales into insignificance in comparison with the Lockerbie trial and with Lord Hardie's inexplicable withdrawal. After the Lockerbie outrage, I had to visit Lockerbie three times as the home affairs minister, and was made aware that more American lives were lost in that one episode than we lost in the Falklands war.
Today, we will not oppose the Executive motion, but we wish to leave it in no doubt, and on the record, that for the Lord Advocate to withdraw from this huge trial, on which he had been working for years, just before it is about to take place, is like a captain deserting a ship before a storm. It is a betrayal of the commitment and assurances that he gave to the relatives of the Lockerbie victims, and I was very sorry indeed to hear that the First Minister had recommended Lord Hardie's appointment, because that shows that the First Minister, in this matter, has not been a person of good judgment.
I believe that the Lord Advocate has used his privilege to obtain higher office at this time, but that he has achieved it with dishonour.
I now call on Roseanna Cunningham to close for the Scottish Conservative—I am sorry, for the Scottish National party. [Laughter.] Sorry about that. You have five minutes.
I have been called many things in my time, but Conservative is not one of them.
I got the first pager message about Lord Hardie's resignation at 7.10 pm last night. It seemed an odd time for such an announcement to be made, but I understand that that was precipitated because the news was supposed to have been managed somewhat better, and placed as an exclusive with one particular newspaper.
Somehow, it got away from the Executive, which was panicked into releasing the news more generally last night. I ask the First Minister to comment on that information. Presumably he knows about it for sure, as he has stated that he is a close personal friend of the Lord Advocate.
The things that this woman says are just not true.
I am sure that the individual who advised me of the news will be interested to hear the First Minister's comments. One newspaper understood that it had the exclusive, and was not happy that that turned out not to be the case.
I said that the First Minister would know, because he described himself as a close personal friend of the outgoing Lord Advocate. I wonder at that remark at a time when the whole issue of judicial appointments is under question generally, never mind specifically.
Judicial appointments are not just under question. If we are to believe the assurances of the Minister for Justice in the past month, they will be under review. The promised consultation on judicial appointments keeps receding. At the risk of adding to my own work load in the Justice and Home Affairs Committee—and I see other committee members groaning already—I hope that the First Minister will take the opportunity in his closing remarks to tell us once and for all when the consultation will start, how long it is intended to last and when we might see concrete change.
Whether the First Minister likes it or not—and with respect to my committee colleague Pauline McNeill—this is only a watershed if it is the last time that this secretive method of promotion is ever used. Will the First Minister please make the commitment to the Parliament that this will be the last time? I note that however much contributors try to qualify their remarks, the fact is that they agree with what I have said on judicial appointments.
I frequently welcome the incorporation of the European Convention on Human Rights into Scots law, and will not accept any criticism on that count, but I and many others have been continually asking questions about our preparedness for the change and about the Lord Advocate's role in getting the country ready for it, in my case to the extent of calling for a human rights commission. The Executive, of which the Lord Advocate is a member, is still havering and dithering on that important question.
At 5 minutes past 5 tonight, will the First Minister instruct Colin Boyd—because he will be the new Lord Advocate—along with the Minister for Justice, to get on to the issue of a human rights commission as a matter of urgency? If not, does that mean that the shambles of the past nine months will continue? I believe that the Scottish people deserve a great deal better than that, just as they deserve better over Lockerbie.
It is not good enough for the First Minister to pretend that this move is just bad timing. Of course, it is extremely bad timing; it is also bewildering, not just for us and for Scotland. It will no doubt cause real consternation internationally; it has already done so among the families of the victims.
Unlike my colleague Kenny MacAskill, I have not been calling for the Lord Advocate's resignation for the past nine months. No doubt Kenny thinks that I should have been. I have, however, been calling for the Lord Advocate and the rest of the Executive to do their jobs. It is my view that they simply have not done so. The First Minister's complacent approach this afternoon suggests that notwithstanding any change of personnel, nothing will change in the future.
If that is the way that we are to go on, that should be a matter of great concern to everyone in this Parliament. The challenges will not go away. There is a crisis facing Scots law. The Labour- Liberal Democrat Administration is failing miserably in facing that challenge and the law officers are implicated in that failure. For goodness' sake—for Scotland's sake—will somebody get a grip.
Presiding Officer, I have listened to the debate with care and—probably sometimes too obviously—with irritation, but there you are.
I certainly agree with Robert Brown: the debate has done a very considerable disservice to those who believe that there should be total openness and public hearings for appointments of this kind.
I recognise the temptation—I am not saying that I would have resisted it in the SNP's place—but there is no doubt at all that what we have seen is a party determined, with very little justification, to make political capital out of events.
I regret deeply that the debate also turned into personal attacks on people who have reputations of high standing and considerable substance. One lady on the Tory benches said that hers was not an attack upon the incoming law officers, but of course the debate turned out subsequently to be such an attack, certainly in the speeches of some SNP members. That was extremely unfortunate.
I said that I regretted that I felt that Mr Boyd was being tainted. I make it plain that I was criticising the quality of the professional judgment.
This is quite a serious matter. I do not know the lady—I think that she is a solicitor to trade, but I am not in a position to know. The only one that I can actually talk about is Roseanna Cunningham, because I once employed her as a conveyancing assistant.
It was as a reparations assistant.
Oh? A reparations assistant? Well, that shows the impact that she made. I also know, of course, that she had a short career at the bar.
To be serious, I regret the very personal nature of the debate. In particular, I think that the Conservative benches are culpable. I know that James Douglas-Hamilton feels very deeply about matters, but I think that he will regret the speech that he made. I certainly regret the fact that he made it. It does not help anyone to try to major on that particular aspect of the matter.
Clearly, there will be contact with the people who, tragically, were touched by the Lockerbie disaster. I have no doubt that the new Lord Advocate, when he is confirmed, will take immediate steps to do that.
The Solicitor General for Scotland (Colin Boyd) indicated agreement.
I say again that what is important is whether the team is in a position to carry out its job and do its task. I hope that James Douglas-Hamilton will agree that the advocate deputes who are involved, and who will inevitably carry much of the weight of the trial, the Lord Advocate and the Solicitor General, have very distinguished pasts. The new Lord Advocate has been involved integrally in the preparation for the trial, and I hope that James Douglas-Hamilton, on reflection, will agree that we should stress that and make that very clear indeed.
I also listened carefully to this debate and I agree with the point that Lord James Douglas-Hamilton made. There is no doubt that Lord Hardie gave undertakings to the relatives of the Lockerbie victims. Why did he do so if he did not intend to discharge those undertakings?
He did so because the Lord Advocate is the senior law officer and whoever is the Lord Advocate carries the responsibility for the Lockerbie trial. I hope that that responsibility will be carried by Colin Boyd in a few days.
I found the debate illogical in many ways. I was not entirely joking when I pointed out to Annabel Goldie that it was illogical to say that someone who has made a total hash of his job should not leave it. I know that there is a good boy-scout principle that if someone is bad at something, they should stumble on regardless. The fact is that the people concerned were not bad at their jobs. They were extremely good at their jobs and had distinguished records. Lord Hardie has a remarkable record and, as Lord James Douglas- Hamilton will know, has been endorsed by his peer group in the Faculty of Advocates: he was elected as treasurer and then as dean. It is unfortunate that he should be criticised as he has been.
Of course, there have been problems with the introduction of the European convention on human rights. In a sense—and I hope that this will not be misinterpreted—the point of introducing it was to bring about change. Change, however, can be an uncomfortable business. I listened to the attacks that have been made today. Some of them misinterpreted some of the judgments. Michael Matheson, for instance, did not grasp that the key point of the judgment on temporary sheriffs was not appointment but security of tenure. I make no complaint about that, because, as he properly said, he is not a lawyer.
I say this quite genuinely: taking the children's panel issue as an example, I am not sure how challenges in the court can be guarded against. That cannot be done. Cases must be tested in the courts. The vast majority of times that that has happened, we have won. There has been no challenge yet relating to the children's panels, although we think that one case is starting. A few years ago, there was a case that related to the matter of production of documents. However, that was not central to the ECHR issues.
If I thought that some simple steps could have been taken to guard against challenge or ensure that every challenge failed and that the Lord
Advocate of the day had failed to take those steps, I would have some sympathy with the charge that is being made. It is not like that, however. At least some of the people who spoke today must know that. They are culpable and have allowed reason to be overruled by partisan feelings.
I do not know whether this will carry weight with members, but Neil Davidson is the chairman of the Faculty of Advocates human rights committee. I advance that fact to remind members that he has a record in that field of law and is seen as a practised practitioner. I refute the suggestion that there has been a failure to take proper safeguards. When the Ruddle case came down the track, skilled lawyers from a wide spectrum of legal opinion, not from within the Administration, spent an impressive and concerning number of hours trying to find the answers to difficult problems. We came up with what we thought was the best solution.
I do not deny for a moment the fact that important issues arise from these matters but I wish that they were being reasonably stated and argued. I agree with Michael Matheson about the difficulty of reconciling the different roles of the Lord Advocate. That is worth considering at some point. Members should bear in mind that the Lord Advocate has always been a member of the Administration.
I listened to Annabel Goldie with genuine puzzlement as her speech seemed to be posited on the fact that the Lord Advocate was involved as a member of the Administration in a novel way. I cannot think of a single Lord Advocate who has not been a member of the Administration of the day and bound by collective decisions taken by the Administration. We may say that that should not be so, but, my goodness, Annabel Goldie tholed it with remarkable phlegm during the previous 18 years. I find it extraordinary that she now protests.
I thank the First Minister. The point that I was making, albeit clumsily and ineptly, was quite simply that the devolved structure in Scotland has created very different circumstances. It has placed a magnifying glass over every sector of activity in Scotland. We have never had the precedent of a Lord Advocate being a member of cabinet in a devolved Scotland. [Laughter.] The vision of the First Minister bobbing up and down is most enticing, Sir David. I shall keep him on his spring.
Be fair, as he is winding up now.
The issue is this: in a devolved structure, there is an absolute need for a political divergence and a professional detachment of the law officers. I do not want to stand here and harry
Mr Boyd. I do not want to stand here and knock his head off, or issue a tirade at him because I think that there has been some deficiency in his advice. I do not mind doing that to the First Minister, because he is elected to take that on the chin. However, I do not think that the professional adviser to the Executive is in a comparable position.
As I say, this is a matter that others may debate, and on which there may be many views. I am simply pointing out that we have always had a Lord Advocate and a Solicitor General who have been members of the Administration. I suppose that it goes back to Dundas, who was practically the Government personified. In my lifetime, however, those officials have always been bound by a collective responsibility. Large issues are raised if the role of the Lord Advocate is separated in that way, particularly at a time when we are bound by ECHR considerations, European Union regulations, and rules and vires within our devolved system. Those are all matters on which the advice of the law officers becomes increasingly pressing.
As for Phil Gallie—and this is the kindest approach that I can take towards that rather puzzling object—I accept that his indignation was largely ad hominem and a personal attack on ministers, which I regret. His indignation about the way in which the system works is misplaced, if one looks at the record. I do not want to drag the present Lord President into this debate. However, he is the most recent example of someone who was promoted to the bench as Lord Advocate at a very distinguished time, and within a year became Lord President. I make no complaint; but Phil Gallie cannot regard this as somehow an offence against morality in a moral world. What world was he living in only five years ago?
Will the First Minister give way?
I leave the point with Phil Gallie. I am sure that he can come back. However, I want to finish, as I recognise that this is an important matter.
I want to make clear the fact that examination of the problems of judicial appointments is something to which we are committed. We have made that clear; it is in the partnership document, and the Deputy First Minister and Minister for Justice has been working on it for some time. Andrew Hardie also played his part in some of the preliminary discussions. In the near future, we hope to produce a discussion document.
It is easy to endorse the principle that there should be change; it is not quite so easy to see what kind of change that should be, or the way in which the many competing principles that are involved can be reconciled. I want to canvass
change; I want to broaden the range of entry; I want to have greater transparency; but I also want to ensure that those who appear on our bench, and in whose hands our interests often lie, are people of proven competence who can do the job. Getting that balance right is always going to be difficult, and it is a responsibility that this Administration takes seriously.
I have been heavily criticised, apparently, for saying that I have a good friend in Andrew Hardie. I could probably nominate a few SNP members, even from the front bench, who are not good friends of Mr Alex Salmond, but on the whole he probably knows most of them quite well. I do not think that there is anything sinister in that. What is important is whether people do the job: whether they have the ability, the trust, the confidence and the moral character. On that point I have no doubts. Neither do I have any doubts about the ability of Neil Davidson and Colin Boyd, as Solicitor General and Lord Advocate, to serve this Administration, this Parliament—in a broader sense—and the people of Scotland well.
I commend the motion to my colleagues.
Under our standing orders, a motion to appoint law officers is uniquely provided for, as I must put it immediately to the chamber.
The question is, that motion S1M-558, in the name of the First Minister, on the appointments of the Lord Advocate and the Solicitor General, be agreed to.
Motion agreed to.
That the Parliament agrees that it be recommended to Her Majesty that Mr Colin Boyd QC be appointed as the Lord Advocate and that Mr Neil Davidson QC be appointed as Solicitor General for Scotland.